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Rothery, Meghan --- "Qcat or Judicial Review?: Reviewing Decisions of the National Injury Insurance Agency in Queensland" [2021] PrecedentAULA 11; (2021) 162 Precedent 42


QCAT OR JUDICIAL REVIEW?

REVIEWING DECISIONS OF THE NATIONAL INJURY INSURANCE AGENCY IN QUEENSLAND

By Meghan Rothery

Most Queensland lawyers practising within the motor vehicle accident catastrophic injury arena will have historically focused on maximising funding and choice regarding their clients’ rehabilitation and treatment needs pursuant to the Motor Accident Insurance Act 1994 (Qld) (MAIA). Now, with the introduction of the National Injury Insurance Scheme (Queensland) Act 2016 (the Scheme), we are required to understand the intersection between our catastrophically injured clients’ participation in the Scheme, their rights under the MAIA, and how we can intervene and advocate where necessary.

This article provides a summary of the options for reviewing decisions made by the National Injury Insurance Agency (the Agency) and discusses the decisions of Taylor v The National Injury Insurance Agency Queensland[1] (Taylor) and Smith v National Injury Insurance Agency, Queensland[2] (Smith),

which illustrate the role that judicial review can have in this space.

BACKGROUND

The purpose of the Scheme is ‘to ensure that persons who suffer particular serious personal injuries as a result of a motor accident in Queensland receive necessary and reasonable treatment, care and support, regardless of fault’.[3] This purpose is achieved by the Agency, which assesses and makes payments for ‘the treatment, care and support needed by participants in the [S]cheme’.[4]

Once a claimant is accepted into the Scheme, the CTP insurer is relieved from any obligation to provide rehabilitation[5] and the Scheme must pay the treatment, care and support damages to the claimant[6] – unless the claimant is accepted as a lifetime participant but opts out.[7]

However, the reality is that catastrophically injured CTP claimants now have the Agency as a new and additional respondent in their claims.[8] As an advocate, if you are not across the issues and prepared to review the actions of the Agency when necessary, your client’s rehabilitation outcomes or their right to choose and access timely treatment could be compromised or delayed, with undesirable flow-on effects for the assessment of the quantum of their future needs.

Examples of issues which may give rise to a need to challenge an Agency decision include:

• A determination that your client is ineligible to participate in the Scheme;[9]

• A failure to make a decision regarding participation in the Scheme within the stipulated timeframes;

• A refusal to fund external case management;

• The assumption by the Agency of the role of case manager;

• A refusal of service requests for the funding of treatment, care and support needs; or

• A refusal to approve a payment request for costs relating to a client’s treatment, care and support needs.

INTERNAL REVIEW

Chapter 6 of the Scheme sets out a detailed and prescriptive process by which a claimant is to seek a review of the Agency’s decision. Section 106 enables a claimant to apply for an internal review within 28 days after receipt of the subject decision.[10] The Agency has discretion, at any time, to extend the timeframe for making an internal review application.[11]

Once an application is made for internal review, the Agency may request further information from the claimant in order to decide the application. This request can be made at any point up to 28 days after the application is received.[12]

In deciding the application, the Agency may make a decision to confirm the original decision; amend the original decision; or substitute another decision for the original decision.[13] The decision is required to be made within 28 days or, if an information request has been made, within 28 days of receiving the response to an information request.[14] The Agency then has a further 14 days to provide the decision to the claimant.

The timeframe for internal review may prove much longer than it appears at first glance. From the time the Agency issues its original decision, it can take up to 126 days for a claimant to receive an internal review decision.

QCAT

If a claimant is dissatisfied with their internal review decision, an application for review can be made to the Queensland Civil and Administrative Tribunal (QCAT).[15] In these circumstances, QCAT will have all of the functions of the original decision-maker and must hear and decide the review by way of a further hearing on the merits.[16]

Depending on how long a claimant needs to wait to secure a hearing date before QCAT, the timeframe to receive a decision from QCAT following the receipt of the original decision from the Agency may be several months.

JUDICIAL REVIEW

Judicial review may, in particular cases, offer an appropriate opportunity for an aggrieved claimant to have a matter pertinent to the correctness, or otherwise, of a decision from the Agency decided by the Supreme Court of Queensland. The timeframe for judicial review is often shorter than that involved in applying for internal review by the Agency, or bringing the matter before QCAT.

In deciding whether it is appropriate for any particular decision to be challenged by way of judicial review, advocates must consider what remedy might be achieved for their client and whether the Court is likely to consider that judicial review is the appropriate method for challenging the decision, considering the likelihood that the application for judicial review will be met with an application for dismissal by the Agency.[17]

Eligibility

In order to bring an application for a statutory order of review, the applicant must be a person who is aggrieved by a decision to which the Judicial Review Act 1991 (Qld) (JRA) applies.[18]

The JRA provides that a reference to a person who is aggrieved by a decision includes ‘a person whose interests are adversely affected by the decision’,[19] and that a ‘decision to which this Act applies’ means ‘a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)’.[20]

Where a claimant has been denied access to the Scheme or rejected by the Agency on a request to fund treatment, care and support needs, the claimant will be eligible to apply for judicial review. The decisions of Taylor[21] (involving a decision to reject a service request) and Smith[22] (involving a decision to reject an application to participate in the Scheme) now serve as authority for this proposition.

Grounds to challenge the Agency’s decision

The grounds upon which an applicant may challenge a decision include:

(a) that a breach of the rules of natural justice happened in relation to the making of the decision;

(b) that procedures that were required by law to be observed in relation to the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorised by the enactment under which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(i) that the decision was otherwise contrary to law.’[23]

It is also possible to bring an application for judicial review in relation to the conduct of a decision-maker[24] or the failure to make a decision.[25]

Remedies

The court may make all or any of the following orders if a ground or grounds for review are successfully established:

• to quash or set aside the decision;[26]

• to refer the matter back to the Agency for further consideration, potentially with directions (such as time limits or preparatory steps for the making of a fresh decision);[27]

• to declare the rights of the parties in relation to any matter to which the decision relates;[28] and

• to direct any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties.[29]

In considering judicial review, advocates must recall that judicial review does not involve the court deciding whether the decision was good or bad on its merits, but rather requires an analysis of whether the decision-maker erred, in terms of procedural fairness or law, in the making of the decision. Further, the usual order is to set aside the decision and remit it back to the decision-maker, particularly where there remains any discretion in determining whether the decision should be made favourably or unfavourably for the successful judicial review applicant.[30]

EXAMPLES OF SUCCESSFUL JUDICIAL REVIEW

Smith

Mr Smith was seriously injured in a motorcycle accident and suffered a brachial plexus injury, leaving his right arm functionally useless save for some slight movement in his thumb and wrist. He had applied to be a participant in the Scheme but was rejected by the Agency on the basis that his injury did not fall within the definition of ‘serious personal injury’ which relevantly included ‘a permanent injury to the brachial plexus resulting in an impairment equivalent to a shoulder disarticulation amputation’.[31]

The Agency reasoned that Mr Smith still retained slight feeling and movement in his thumb and wrist, and took the view that the phrase ‘impairment equivalent’ required him to have no feeling or movement in his arm or hand. In Mr Smith’s application for judicial review, the primary issue was whether the Agency erred in law or failed to consider a relevant consideration because of its interpretation of ‘serious personal injury’.

Finding in favour of Mr Smith, the Court held that:

‘The internal review officer erred by requiring a test of equivalence of bare physical effect, rather than the statutory definition’s test of equivalence of impairment. This involved an error in the construction of the definition, constituting both an error of law and a consequential failure to take a relevant consideration into account, namely Mr Smith’s loss of functional use of his arm. This provides grounds for interference by this court.’[32]

The Court ordered that the Agency’s decision to reject Mr Smith’s application to participate in the Scheme be quashed and for the matter to be returned to the Agency for further determination. The Court declined to make a direction that the Agency accept Mr Smith into the Scheme on the basis that there remained some discretion for the Agency to accept Mr Smith either as a lifetime or interim participant. However, the Court did take the opportunity to express its view regarding the ultimate outcome of Mr Smith’s application, stating that ‘the information presently available to the respondent ... appears to compel the conclusion that Mr Smith’s brachial plexus injury meets the definition of “serious personal injury” in the NIIS Act’.[33]

Taylor

Mr Taylor had been rendered tetraplegic in a motor vehicle accident in December 2019 and was accepted as an interim participant in the Scheme in January 2020. In February 2020, a rehabilitation needs assessment report by Integrate Rehab Pty Ltd (Integrate) was forwarded to the Agency by Mr Taylor’s solicitors. The report, among other things, made recommendations for Mr Taylor to receive case management services to assist with preparation for his discharge from hospital. The Agency took the report to be a service request for external case management services and issued a decision rejecting funding for external case management on the basis that the Agency itself would act as case manager. Mr Taylor sought a review of the decision under the JRA on the grounds that there was no evidence to justify the decision; the decision was an improper exercise of power conferred by statute; the decision was contrary to law; the applicant was not afforded natural justice; and the Agency was affected by bias.

Mr Taylor succeeded on three grounds:

1. The Agency appointing itself as the case manager for Mr Taylor amounted to an error of law as it was a decision which was ultra vires of the Agency’s powers and authority under the Scheme.[34]

2. The Agency failed to take into account the matters required by s15 of the Scheme in making its decision.[35]

3. There was a breach of natural justice in that the Agency had denied Mr Taylor the opportunity to provide submissions when it elected to treat the report as a service request.[36]

The Court quashed the Agency’s decision and made a direction, pursuant to s30(1)(d) of the JRA, that Integrate be appointed as the case manager for Mr Taylor. An order was made directing the Agency to approve the service request. The Agency appealed the decision to the Court of Appeal, challenging both the finding that there was a breach of natural justice and the direction made to approve the service request. The Agency did not challenge the finding that it was acting ultra vires in purporting to act as Mr Taylor’s case manager. Ultimately, the Court dismissed the appeal on the basis it was of no utility because, at the time of the hearing, the relevant service request had already been carried out and the Agency had also approved a further service request appointing Integrate without intervention by the Court.

TIPS AND TRAPS

Application for dismissal

In both Smith and Taylor, the Agency cross-applied for dismissal of the judicial review applications pursuant to ss13 and 48 of the JRA. Section 13 requires the court to dismiss an application if there is an alternate method for review of the decision ‘if it is satisfied, having regard to the interests of justice, that it should do so’.

While an alternate method for review exists under the Scheme for applicants to have their matter heard de novo by QCAT, the Court in Smith found that the anticipated six-month delay in obtaining a hearing date with QCAT to determine the applicant’s eligibility to participate in the Scheme justified the matter being heard on judicial review. Relevant to this was the fact that the six-month delay would, if Mr Smith were accepted into the Scheme, be in addition to a two-year delay he was likely to face in progressing his common law claim while he awaited determination by the Agency as to whether he would be a lifetime participant.

In Taylor, the Agency abandoned its application for dismissal at hearing. However, based on the reasoning of the Court in Smith, the urgency in finalising the identity of Mr Taylor’s case manager to assist him to prepare for his imminent discharge from hospital may have amounted to a weighty consideration favouring judicial review over internal review by the Agency and a hearing de novo by QCAT.

Applying for internal review simultaneously

If you are instructed to apply for judicial review of a decision by the Agency, you might think it prudent to simultaneously apply for an internal review under ch 6, pt 1 of the Scheme to meet the applicable 28-day timeframe. However, to do so would introduce the possibility of your client’s application before the Supreme Court being entirely frustrated. This is because were the Agency to issue its internal review decision prior to the decision being handed down in the Supreme Court proceedings, the challenged decision would no longer be the operative decision and would therefore be incapable of judicial review.[37]

Timing of filing for judicial review

An application for judicial review must be filed within 28 days of the reviewable decision being made.[38] The process is guided by ch 14, pt 4 of the Uniform Civil Procedure Rules 1999 (Qld). Service is required at least 14 days prior to the initial directions hearing,[39] however as applicants may be arguing that the interests of justice support the matter being determined urgently, advocates might consider requesting an earlier first return date from the registry and applying for an abridgement of the time for service.

It is sensible to note the ability of the Agency to administratively repeal a decision pursuant to s24AA of the Acts Interpretation Act 1954 (Qld) if it does so within the timeframe allowed for making the decision.[40] Solicitors might sensibly advise their client to await the expiry of that time period, to avoid alerting the Agency of the grounds for review and give it the opportunity to repeal its decision and issue a new decision which would potentially limit the opportunity for judicial review.

CONCLUSION

An advocate considering judicial review for their client will need to consider if it is justified and more beneficial than the review mechanisms available under the Scheme. This involves asking whether the best result can be achieved by having the decision set aside and remitted to the Agency. If this is the case and no narrowing of the issues has occurred – such as a finding of an error of law as a ground for review, which will tie the Agency’s hands when it reconsiders the matter – then it may be that all that will be achieved for the client is further delay and increased costs. The decisions in Smith and Taylor however do show that judicial review can be of great utility in achieving expeditious and favourable outcomes.

Meghan Rothery is a principal lawyer at Maurice Blackburn and is transitioning to the Queensland Bar in 2021.


[1] [2020] QSC 132 (Taylor).

[2] [2020] QSC 289 (Smith).

[3] National Injury Insurance Scheme (Queensland) Act 2016 (the Scheme), s3(1).

[4] Ibid, s3(2).

[5] Motor Accident Insurance Act 1994 (Qld) (MAIA), s51(1).

[6] The Scheme, above note 3, s42.

[7] By service of a ‘preservation notice’ pursuant to s41 of the Scheme, above note 3.

[8] See s61A(7) of MAIA, above note 5, which obliges a claimant to join the Agency as an additional defendant once proceedings are commenced.

[9] Note that where a seriously injured claimant may be found to be contributorily negligent, acceptance into the Scheme, where arguable, ought to be pursued to maximise the award for treatment, care and support damages – see s52(3) of MAIA, above note 5.

[10] The Scheme, above note 3, s107(b)(ii).

[11] Ibid, s107(2).

[12] Ibid, s108.

[13] Ibid, s109(1)(b).

[14] Ibid, s109(7).

[15] Ibid, s127.

[16] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss1920.

[17] In the matters of Taylor (above note 1) and Smith (above note 2), the Agency brought applications for dismissal pursuant to ss13 and 48 of the Judicial Review Act 1991 (Qld) (JRA).

[18] JRA, ibid, s20(1).

[19] Ibid, s7.

[20] Ibid, s4.

[21] Taylor, above note 1.

[22] Smith, above note 2.

[23] JRA, above note 17, s20(a)–(i).

[24] Ibid, s21.

[25] Ibid, s22.

[26] Ibid, s30(1)(a).

[27] Ibid, s30(1)(b).

[28] Ibid, s30(1)(c).

[29] Ibid, s30(1)(d).

[30] See the decision of Sheppard J (with whom Beaumont and Burchett JJ agreed) in Minister for Immigration and Ethnic Affairs v Comyngham [1986] FCA 289; (1986) 68 ALR 441 and Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637. Three examples of a court directing a particular result appear in the decisions of Cenrin Pty Ltd v Lamb (1993) 42 FCR 167; Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal [1988] FCA 433; (1988) 84 ALR 669; and Taylor (see above note 1).

[31] The Scheme, above note 3, sch 1; Smith, above note 2, [27].

[32] Smith, above note 2, per Henry J, [42].

[33] Ibid, [55].

[34] Taylor, above note 1, per Crow J, [95].

[35] Ibid, [99].

[36] Ibid, [106].

[37] See Perry v Director of Public Prosecutions [1985] FCA 182; (1985) 6 FCR 578 and Deloitte Touche Tohmatsu v Australian Securities Commission [1995] FCA 1212; (1995) 54 FCR 562, 576.

[38] JRA, above note 17, s26(2).

[39] Uniform Civil Procedure Rules 1999 (Qld), ss5712.

[40] For example, if the Agency issued a decision on the 20th day after the making of a service request, it could repeal it up to the 28th day.


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